With oral arguments behind them, it’s crunch time for the justices of the Supreme Court, who still have many cases to decide before the term ends. They meet in conference today. And DC Dicta was remiss not to mention Justice John Paul Stevens’s birthday in last week’s docket. Stevens turned the spry young age of 88 last weekend. Only Justice Oliver Wendell Holmes graced the bench at an older age - he served until he was 90.
Meanwhile:
Are you still sore about the Supreme Court’s role in the 2000 presidential election? Justice Antonin Scalia has a message for you: “Get over it. It’s so old by now.” You can see his full “60 Minutes” interview with Lesley Stahl this Sunday, but here’s a preview:
The very last oral argument case this term involved the question of what happens in an age discrimination claim when the evidence offered by the employer and employee results in a tie for the factfinder. Well, it looks like the recusal of Justice Stephen Breyer could mean the Court itself could end up in a tie. (ABA Journal)
An invitation to Justice Clarence Thomas to speak at the commencement ceremony at the University of Georgia has sparked controversy. Some students and faculty called the invitation inappropriate given recent problems with claims of sexual harassment as the school. But the school’s president stands by his choice and the Atlanta Journal Constitution agrees. (U.S. News; AJC)
President Bush is less than thrilled with Democratic lawmakers’ housing relief plans. (AP)
The government’s plan to crack down on illegal workers could cost employers more than $1 billion a year and legal workers billions in lost wages, a study commissioned by the U.S. Chamber of Commerce says. (AP)
Has your case been granted cert by the Supreme Court? Well, congrats — but before you write a word of your brief or prep for oral argument, you’d better check one website that will help you out more than unshakable legal precedent on your side.
Tony Mauro at Legal Timesfound a website featuring video footage of eight of the nine Supreme Court justices very candidly speaking - often griping - about their appellate advocacy pet peeves. And they make for good watching, even if you aren’t preparing to argue before the high court.
The videos are the product of Bryan Garner, legal writing specialist who sat down and videotaped each justice [except for Justice David Souter, who declined to chat on tape] as they candidly gave their views - as well as an insight into their personalities.
For example, speaking about lawyers who respond to hypotheticals by saying “That’s not my case,” Scalia snipes: “Boy, no. I mark it down. Absolutely, absolutely. I would rule against it if I could, just on [that point.] No, if I had to grade advocates in addition to deciding the case, what you would really get a ‘C’ for is saying that is not this case.”
And don’t make a verb by tacking an “-ize” on the end of a noun if you want to get Justice Anthony Kennedy - a crucial swing voter - on your side. Such a linguistic trick is “like wearing a very ugly cravat,” he said.
Scalia eschews the argument summaries in briefs, but don’t leave them out if you go before the Court. Justice Clarence Thomas loves them. They are “like giving you, you know, what’s going to be on TV next week.”
You can watch all of the videos - we sure will - on the website of LawProse, Inc. DC Dicta will round up a choice sample of quotes from the justices here later on.
Today the Supreme Court ruled that an EEOC intake questionnaire filled out by a FedEx employee constituted a “charge” of discrimination, triggering the agency’s duty to notify the employer and giving the employee, after a period of time, the ability to file a discrimination suit.
Today, Justice Anthony Kennedy’s opinion did not set a hard and fast rule that such questionnaires always constitute a charge, but rather held that “a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf.”
As to whether the employee in the case met that test, Kennedy wrote: “The agency says it does, and we agree.”
Justice Clarence Thomas, who once helmed the EEOC, did not agree. In a dissent joined by Scalia, Thomas wrote: “Because the standard the Court applies is broader than the ordinary meaning of the term “charge,” and because it is so malleable that it effectively absolves the EEOC of its obligation to administer the ADEA according to discernable standards, I respectfully dissent.”
The opinion can be found on the Court’s website here.
In employment discrimination suits, evidence of discriminatory conduct by company managers who supervised other employees, but not the plaintiff, is neither per se admissible nor per se inadmissible, the U.S. Supreme Court ruled today.
In the opinion in Sprint/United Management Co. v. Mendelsohn, No. 06-1221, Justice Clarence Thomas wrote that the “question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and the theory of the case.”
The Court vacated the ruling by the 10th Circuit Court of Appeals that held that the district court abused its discretion by excluding so-called “me too” evidence. The Court’s decision can be found here.
Today the Supreme Court heard oral arguments in the cases of Cuellar v. United States and Warner-Lambert Co. v. Kent, which deal respectively with the standard of proof under a federal money laundering statute and federal preemption of state law fraud claims against drug makers.
As usual, Justice Clarence Thomas did not ask a question during today’s arguments. As DC Dicta pointed out a bit earlier, it has been two whole years since Justice Clarence Thomas has asked a question during oral arguments. (AP)
Among its orders today, the Court agreed Monday to resolve a dispute over the federal government’s ability to take land into trust for American Indian tribes (Carcieri v. Kempthorne, No. 07-526). (AP)
In its other two certiorari grants, the Court agreed to examine law enforcement’s ability to conduct a warrantless search of the automobile’s passenger compartment incident to the arrest (Arizona v. Gant, No. 07-542) and when erroneous jury instructions can lead to habeas corpus relief (Chrones v. Pulido, No. 07-544). The list of all today’s orders is here.
Here is a look at some of the stories in this week’s issue of Lawyers USA (Want to subscribe? Click here): UPDATE: If you tried the links before, and found they didn’t work, that’s because our new website just went live. The links should be fixed now. Sorry about that!
After several years of anticipation, the Department of Labor has issued its final proposed changes to the Family and Medical Leave Act. More here.
A judge’s recent decision to slam attorneys with $8.5 million in sanctions for failing to monitor their client’s e-discovery failures - and report them to the state bar for possible disciplinary action -sent ripples of fear through the legal world. More here.
A growing number of companies driven by a concern over litigation are ramping up employee training in an effort to stamp out sexual orientation bias in the workplace. More here.
Attorney General Michael Mukasey recently told a Senate panel that the Justice Department has replaced the controversial “McNulty memorandum,” which outlines federal prosecutors’ ability to encourage corporate defendants to waive the attorney-client privilege in order to cut a better plea deal. But attorneys representing corporations say they will believe the policy change when they see it - and so far, nothing has changed. More here.
“So I don’t quite understand where Gay, which is subsequent to — to this case — where Gay comes in because it didn’t seem to be the standard that the trial court applied.”
That’s the last thing Justice Clarence Thomas said from the bench on Feb. 22, 2006 during oral arguments in the case Holmes v. South Carolina- and the last time the justice has said anything from the bench.
If Thomas keeps mum through the next two scheduled days of oral argument this term, Feb. 19 and 20, that will bring the length of his silent streak to two full years.
Even on cases where DC Dicta thought Thomas might chime in - such as the Nov. 6, 2007 oral arguments in Federal Express Corp. v. Holowecki, when Justice Antonin Scalia berated the Equal Employment Opportunity Commission (which was once helmed by Thomas), the justice remained silent, except for off-the-record whispering with his bench neighbor Justice Stephen Breyer.
So we now turn to our readers for predictions. When do you think Thomas will speak? Is there a particular pending case or subject matter he’s likely to chime in on? What do you think he will say? Give us your thoughts in the comments field below. Feel free to have fun with this one.
still have many cases to decide before the term ends. They meet in conference today. And DC Dicta was remiss not to mention Justice John Paul Stevens’s birthday in last week’s docket. Stevens turned the spry young age of 88 last weekend. Only Justice Oliver Wendell Holmes graced the bench at an older age - he served until he was 90.
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Posted by Kimberly Atkins
For example, speaking about lawyers who respond to hypotheticals by saying “That’s not my case,” Scalia snipes: “Boy, no. I mark it down. Absolutely, absolutely. I would rule against it if I could, just on [that point.] No, if I had to grade advocates in addition to deciding the case, what you would really get a ‘C’ for is saying that is not this case.”
And don’t make a verb by tacking an “-ize” on the end of a noun if you want to get Justice Anthony Kennedy - a crucial swing voter - on your side. Such a linguistic trick is “like wearing a very ugly cravat,” he said.
Scalia eschews the argument summaries in briefs, but don’t leave them out if you go before the Court. Justice Clarence Thomas loves them. They are “like giving you, you know, what’s going to be on TV next week.”
Today, Justice Anthony Kennedy’s opinion did not set a hard and fast rule that such questionnaires always constitute a charge, but rather held that “a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf.”
Justice Clarence Thomas, who once helmed the EEOC, did not agree. In a dissent joined by Scalia, Thomas wrote: “Because the standard the Court applies is broader than the ordinary meaning of the term “charge,” and because it is so malleable that it effectively absolves the EEOC of its obligation to administer the ADEA according to discernable standards, I respectfully dissent.”
Today the Supreme Court heard oral arguments in the cases of Cuellar v. United States and Warner-Lambert Co. v. Kent, which deal respectively with the standard of proof under a federal money laundering statute and federal preemption of state law fraud claims against drug makers.
Attorney General Michael Mukasey recently told a Senate panel that the Justice Department has replaced the controversial “McNulty memorandum,” which outlines federal prosecutors’ ability to encourage corporate defendants to waive the attorney-client privilege in order to cut a better plea deal. But attorneys representing corporations say they will believe the policy change when they see it - and so far, nothing has changed. 
